Abdol Hamid. Hashemi

Patent Trials and Appeals Board

Nov 22, 2019

14753358 - (D) (P.T.A.B. Nov. 22, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/753,358 06/29/2015 Abdol Hamid Hashemi 1404-002 7095
79606 7590 11/22/2019
Buchanan Van Tuinen LLC
P.O. Box 700
Perrysburg, OH 43552-0700
EXAMINER
ISLAM, SYED A
ART UNIT PAPER NUMBER
3636
NOTIFICATION DATE DELIVERY MODE
11/22/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
pair@ipbybv.com
uspto@ipbybv.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte ABDOL HAMID HASHEMI
__________________

Appeal 2018-003902
Application 14/753,358
Technology Center 3600
____________________

Before JAMES P. CALVE, MICHELLE R. OSINSKI, and
JEREMY M. PLENZLER, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the decision
of the Examiner to reject claims 1–20. We have jurisdiction under 35 U.S.C.
§ 6(b). Appellant appeared at an oral hearing conducted on November 7,
2019.
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies IPIC-GOLD CLASS ENTERTAINMENT, LLC as the real party
in interest. Appeal Br. 3.
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Application 14/753,358

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CLAIMED SUBJECT MATTER
Claims 1, 11, and 19 are independent. Claim 1 is reproduced below.
1. A theater seating system comprising:
a separating panel having a separating panel lengthwise
axis, a first end, a second end, a first section, a second section, a
third section, and a fourth section, the separating panel
lengthwise axis extending through the second section and the
fourth section, the first section extending from the first end to
the second section, the second section extending from the first
section to the third section, the third section extending from the
second section to the fourth section, the fourth section
extending from the third section to the second end, the first
section, the second section, the third section, and the fourth
section cooperatively defining a chamber, the first end
separated from the second end to define an opening providing
access to the chamber, the first end separated from the second
end by a first length, the third section having a second length
that extends from the second section to the fourth section, the
second length being greater than the first length; and
a first theater seat disposed within the chamber;
wherein the second section of the separating panel has a
second section bottom surface, a second section top surface,
and a first height that extends from the second section bottom
surface to the second section top surface; and
wherein the fourth section of the separating panel has a
fourth section bottom surface, a fourth section top surface, and
a second height that extends from the fourth section bottom
surface to the fourth section top surface, the second height
being less than the first height.

REJECTIONS
Claims 1–9, 11–13, 16, 17, 19, and 20 are rejected under 35 U.S.C.
§ 103 as unpatentable over Johnson (US 2012/0318918 A1, pub. Dec. 20,
2012) and Baloga (US 4,715,154, iss. Dec. 29, 1987). Final Act. 4–9; Ans.
3–4 (omission of Baloga from caption in Final Action was inadervetnt).
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Claims 5, 6, 14, and 15 are rejected under 35 U.S.C. § 103 as
unpatentable over Johnson, Baloga, and Bettell (US 7,997,531 B2, iss. Aug.
16, 2011).
Claims 10 and 18 are rejected under 35 U.S.C. § 103 as unpatentable
over Johnson, Baloga, and Hankinson (US 2010/0193634 A1, pub. Aug. 5,
2010).
ANALYSIS
Claims 1–9, 11–13, 16, 17, 19, and 20
Unpatentable over Johnson and Baloga
The Examiner finds that Johnson teaches a separating panel (travel
suite 10) with four sections, opening 16, and a theater seat (passenger seat
20) as recited in claim 1, but Johnson does not teach a second section with a
first height greater than a second height of the fourth section as claimed.
Final Act. 4–5. The Examiner finds that Baloga teaches a second section
(privacy panel 50) with a first height and a fourth section (reception area
panel 40) with a second height that is less than the first height. Id. at 5–6.
The Examiner determines it would have been obvious to modify Johnson to
use a shorter fourth section “for the purpose of keeping the cost low” as
“smaller panel (42) of Baloga will require less material to manufacture.” Id.
at 6; Ans. 5. Alternatively, the Examiner finds that “Johnson in figures
clearly discloses the height [of the second and fourth section walls] are
different.” Final Act. 2; Ans. 4. In particular, the Examiner finds Johnson’s
drawings illustrate seatback 20 is higher than the opposite side, which is cut
lower and dips down, as claimed, and further “the panel behind the seatback
20 also includes two different heights” where “[o]ne of the heights is greater
than the height on the opposition section” as claimed. Ans. 4.
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We agree with Appellant that passenger seat 20 of Johnson and its
seat back do not correspond to a panel as claimed. Appeal Br. 10–12. The
Examiner’s interpretation and findings in this regard are inconsistent with
the claim language interpreted in light of the Specification.
Independent claims 1, 11, and 19 each recite a separating panel with
first, second, third, and fourth sections that define a chamber.2 Appeal Br.
19, 21, 23–24 (Claims App.). These claims also recite “a first theater seat
disposed within the chamber.” Id. at 19, 22, 25. The theater seat is claimed
as a distinct element from the separating panel sections, and the theater seat
is disposed within a chamber formed by the sections of the separating panel.
The Specification also describes separating panel 12 as comprising sections
42, 44, 46, 48 that define chamber 50 that is sized and configured to receive
first and second theater seats 14, 16. Spec. ¶¶ 36, 37, Figs. 1, 2.
In the Final Office Action, the Examiner correctly finds that passenger
seat 20 of Johnson corresponds to the first theater seat that is disposed within
a chamber formed by the sections of the separating panel as claimed. Final
Act. 4. Johnson discloses that travel suite 10 is defined by enclosure 11 that
delimits the area of the travel suite to provide support structures for interior
components. Johnson ¶ 38. Johnson teaches passenger seat 20 as an interior
component that is positioned within walls 14 of enclosure on one end of the
enclosure. Id. ¶ 40. These teachings of Johnson undermine the Examiner’s
finding that passenger seat 20 is part of the separating panel (enclosure 11).
Final Act. 2–3; Ans. 4. Johnson describes seat 20 as a separate component
positioned within the interior of enclosure 11. Johnson ¶¶ 38, 40, Figs. 1–9.

2 Claim 19 recites these elements as first/second separating panel that define
first/second separating panel chambers. Appeal Br. 23–24.
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However, we agree with the Examiner that Johnson teaches a separate
section of wall 11 that is behind seatback 20 and has two different heights.
One of the heights is greater than the height of a section of wall 11 on the
opposite side. Ans. 4. Therefore, Johnson teaches a second section having a
height that is greater than a height of a fourth section as claimed.
Figure 4 of Johnson, reproduced below, illustrates this feature.

Figure 4 illustrates enclosure 11 with wall 14 having a raised height adjacent
to video monitor 42 and a reduced height near ottoman 22. Johnson ¶¶ 38–
41. The Examiner correctly finds that a left section of wall 14 (at lead lines
50 and 54) is lower than a section of wall 14 behind seat 20 as claimed for
the fourth and second sections. Ans. 4. In view of these teachings, we
disagree with Appellant’s argument that Johnson illustrates opposing wall
sections having the same height in all embodiments. See Appeal Br. 10–12.
Appellant presents no other argument apprising us of error in the Examiner’s
findings that Johnson teaches a fourth section with a height less than a height
of a second section as claimed. See Reply Br. 1–3.
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Drawings in a utility or design patent can be cited against claims of a
utility patent application. See In re Aslanian, 590 F.2d 911, 913–14 (CCPA
1979). Prior art teachings, including the drawings, are evaluated on the basis
of what they reasonably disclose and suggest to a skilled artisan. Id. at 914.
“[A] claimed invention may be anticipated or rendered obvious by a drawing
in a reference, whether the drawing disclosure be accidental or intentional.”
In re Meng, 492 F.2d 843, 847 (CCPA 1974) (citation omitted); Aslanian,
590 F.2d at 914 (holding “a drawing in a utility patent can be cited against
the claims of a utility patent application even though the feature shown in
the drawing was unintended or unexplained in the specification of the
reference patent.”); In re Mraz, 455 F.2d 1069, 1072 (CCPA 1972) (holding
that things shown clearly in patent drawings are not to be disregarded).
Appellant has not apprised us of error in these findings. See 37 C.F.R.
§ 41.37(c)(1)(iv) (the Appeal Brief “shall explain why the examiner erred as
to each ground of rejection contested by appellant.”); In re Jung, 637 F.3d
1356, 1365 (Fed. Cir. 2011) (approving of the Board’s practice to require an
applicant to identify error in an examiner’s rejections; “Moreover, even
assuming that the examiner had failed to make a prima facie case, the Board
would not have erred in framing the issue as one of ‘reversible error.’”).
Even if these findings of the Examiner constitute a new ground of
rejection in the Answer, as Appellant alleges (Reply Br. 2), Appellant’s
recourse was to petition the Director under 37 C.F.R. § 1.181 within two
months of entry of the Answer and before the filing a Reply Brief. See
37 C.F.R. § 41.40(a); MPEP § 1207.03. Appellant’s decision to file a Reply
Brief instead of a petition to the Director waives any argument that the
rejection must be designated as a new ground. See 37 C.F.R. § 41.40(a).
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Regarding Appellant’s arguments that the Examiner failed to provide
adequate notice under 35 U.S.C. § 132 (Appeal Br. 8–9; Reply Br. 1–2), the
main issue in dispute is whether Johnson teaches second and fourth sections
with different heights. Appellant did not challenge the Examiner’s finding
that Johnson teaches these feature in the drawings as discussed above.3 Nor
did Appellant apprise us of error in the Examiner’s findings that Johnson
teaches all of the other features recited in claim 1. See Appeal Br. 8–15;
Reply Br. 1–3. Thus, we are not apprised of error in any of the Examiner’s
findings that Johnson teaches all of the features recited in claim 1 to include
the claimed second and fourth section heights. See Final Act. 4–5; Ans. 4.
Accordingly, we sustain the rejection of claim 1 and claims 2–9, 11–13, 16,
17, and 19, which are not argued separately.4 37 C.F.R. § 41.37(c)(1)(iv);
see Appeal Br. 8–12. Our affirmance of this rejection based on Johnson is a
general affirmance of this rejection. See 37 C.F.R. § 41.50(a)(1). Because
we affirm this rejection based on Johnson’s teachings, we do not address the
Examiner’s findings related to Baloga (Final Act. 5–6; Ans. 4–5). See In re
Kronig, 539 F.2d 1300, 1303 (CCPA 1976) (holding that Board’s affirmance
of a rejection on less than all references was not a new ground of rejection
because the Board relied on the same teachings as the Examiner); see also
Jung, 637 F.3d at 1365 (Board can affirm the Examiner if appellant has had
a fair opportunity to react to the thrust of the rejection).

3 At the hearing, Appellant acknowledged these findings in the Answer and
stated they were not traversed. Hr’g Tr. 14:17–20, 15:16–16:8, 17:14–21;
see Reply Br. 3 (“This Reply Brief raises no new issues. Appellant requests
that this matter proceed to the Board without further briefing.”).
4 Reciting claims 9 and 17 and asserting that their features are not obvious
(Appeal Br. 15) is not an argument for separate patentability. See 37 C.F.R.
§ 41.37(c)(1)(iv); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011).
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Claims 5, 6, 14, and 15
Unpatentable over Johnson, Baloga, and Bettell
Appellant argues that Bettell does not cure the defects of Johnson and
Baloga as to claims 1 and 11 from which claims 5, 6, 14, and 15 depend
respectively. Appeal Br. 15–16. Because we sustain the rejection of claims
1 and 11 as unpatentable over Johnson, there are no defects for Bettell to
cure. Thus, we also sustain the rejection of claims 5, 6, 14, and 15.
Claims 10 and 18
Unpatentable over Johnson, Baloga, and Hankinson
Appellant argues that Hankinson does not cure the defects of Johnson
and Baloga as to claims 1 and 11 from which claims 10 and 18 depend
respectively. Appeal Br. 15–16. Because we sustain the rejection of claims
1 and 11 as unpatentable over Johnson, there are no defects for Hankinson to
cure. Thus, we also sustain the rejection of claims 10 and 18.
CONCLUSION
We affirm the rejection of claims 1–20.
Claims
Rejected

35 U.S.C. §
Basis or
Reference
Affirmed Reversed
1–9, 11–13,
16, 17, 19, 20
103 Johnson, Baloga 1–9, 11–13,
16, 17, 19, 20

5, 6, 14, 15 103 Johnson,
Baloga, Bettell
5, 6, 14, 15
10, 18 103 Johnson,
Baloga,
Hankinson
10, 18
Overall
Outcome
1–20
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Application 14/753,358

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED